ORDER
P.S. Bajaj, Member (J)
1. In this appeal, the appellants have questioned the validity of the impugned Order-in-Appeal No. 86/2001 (M-III) dated 16-7-2001 vide which the Commissioner (Appeals) has affirmed the Order-in-Original of the AC who confirmed the duty demand of Rs. 70,694/-.
2. The facts of the appeal lies in a short compass which are stated as under :-
The appellants are engaged in the manufacture or Power Rack, Pinion, Steering gearing of various models and pumps for liquids and parts of pumps etc. falling under chapter 87. They were issued with show cause notice dated 22-11-2000 vide which they were called upon to show cause as to why the duty involved on the stolen goods to the tune of Rs. 70,694/- should not be demanded from them as per Section 11A of Central Excise Act 1944 read with Rule 9(2) of Central Excise Rules, 1944. They, however, contested the notice by alleging that the stolen goods were not finished goods and were also not marketable and as such no duty could be demanded in respect thereof. The goods being in the assembly line for the purpose of testing, were not entered in RG 1 register. They also sought remission of duty under Rule 49 of the Central Excise Rules.
3. The adjudicating authority after considering their reply and the material brought on record, confirmed the duty demand vide Order-in-Original dated 7-3-2001. That order of the AC had been affirmed by the Commissioner (Appeals) through the impugned order.
4. The Ld. Counsel has assailed the impugned order mainly on the ground that the stolen goods were not finished goods, as the process of testing was yet to be carried out and that the goods in that condition were not even marketable. To substantiate his contention, the Counsel has heavily relied on the Trade Notice No. 80/84 dated 28-12-1984 issued by the Collector-ate of Chandigarh and also the Tribunal’s judgment in Dariwal Tobacco Products Ltd. v. CC & CCE, Hyderabad, 2002 (139) E.L.T. 356 (T-Chennai) to further contend that the burden of proving the marketability of the stolen goods was on the Revenue. The Counsel has also relied upon the letter dated 22-8-2000 sent by the Superintendent Range-II to the appellants in respect of the stolen goods.
5. On the other hand, Ld. JDR has reiterated the correctness of the impugned order and contended that the non-entry of the goods in the RG. 1 register did not render the goods non-marketable and semi-manufactured. Regarding the Trade Notice cited above, the learned JDR has argued that it had been issued only with respect to entry of goods to be made in the RG. 1 register and has nothing to do with the manufacture and marketability of the goods.
6. We have heard both sides and gone through the records. The stolen goods were ‘gears’ and we find from the Order-in-Original that except for testing, the goods were complete in all respect. They were duly manufactured goods and even serial numbers were also allotted to them. Only the testing of the goods were left. As it is and without testing, the goods could be cleared and sold in the market The testing of the goods was only to ascertain its quality, similarly non-entry of the goods in the RG. 1 register by the appellants did not render the goods non-manufactured and non-marketable. There is no dispute with regard to this proposition of law as laid down by the Tribunal in the above case that the burden to prove the goods to be marketable lies on the Revenue. Non-carrying out the test in respect of those goods would not in any manner render the same as ‘non-marketable’. As observed above, the goods could be marketed. Even otherwise, one oftenly finds that the goods are sold in the market irrespective of the testing. The Trade Notice relied on by the Counsel referred to above issued by the Commissionerate of Chandigarh is also no avail to the appellants. That trade notice only indicates the stage at which the goods are to be entered in the RG. 1 register by the manufacturer and nowhere provides that without testing the goods will remain non-marketable and non-manufactured. The fact that appellants themselves, in the alternative, had claimed remission of duty also goes to show that the goods were fully manufactured and marketable. The adjudicating authority has recorded detailed reasonings while confirming the demand of duty. The Commissioner (Appeals) too has affirmed that order by recording his reasons. We do not find any sufficient ground to reject the findings of facts regarding manufacture and marketability of the stolen goods recorded by both the authorities. There is also nothing on record to suggest if immediately after theft of the goods, appellants claimed remission of duty. Even otherwise, the theft could not be considered to be unavoidable cause for granting them remission of duty in terms of Rule 49 in view of law laid down by the Hon’ble Madras High Court in the case of Golden Hills Estates v. CCE, Madras, 1997 (90) E.L.T. 301 (Mad.).
7. The letter of the Superintendent, on which much stress has been made by the counsel during the course of the arguments, does not take the case of the appellants to any logical conclusion. The letter issued by the Superintendent, rather informed them that the stolen goods were not in semifinished but in almost finished condition, though not entered in the RG.1 at the time of theft Thus the letter, in fact, does not in any manner help the appellants for claiming remission of duty. The range Superintendent even informed the appellants that they were liable to pay full duty in respect of stolen goods. Therefore, we do not find any illegality in the impugned order of the Commissioner (Appeals) and the same is upheld. The appeal of the appellants is dismissed being devoid of any merit.